130 F.2d 797 | 3rd Cir. | 1942
This case is before the court upon an appeal from a dismissal of the plaintiff’s complaint by the court below on the ground that the plaintiff’s allegations did not state a claim upon which relief could be granted. The action is one brought by a seaman to recover the cost of maintenance, cure and wages. According to his allegations the plaintiff signed on under coast-wise articles from New Orleans, La., to East Coast and Gulf Ports of the United States for a period of twelve months. While the vessel was moored to Pier C, Port Richmond, Philadelphia, January 16, 1941, plaintiff left on shore leave. As he was proceeding through the pier toward the street all the lights on the pier went out. In the ensuing darkness the plaintiff alleges that he fell into an open ditch at a railroad siding and sustained injury.
The obligation of the defendant to the plaintiff arising out of the maritime law for maintenance and cure is stated in the leading case of The Osceola, 1903, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760, as follows: “That the vessel and her owners are liable, in case a seaman falls sick, or is wounded, in the service of the ship, to the extent of his maintenance and cure, and to his wages, at least so long as the voyage is continued.”
The only point with which we are here concerned is the requirement, in order that the obligation for maintenance and cure apply, that the injury or illness arise in the service of the ship. The amount of the claim is not before us nor is there any question of a claim otherwise recoverable being lost by the “wilful misconduct” of the seaman. Decisions involving the latter point are useful only in so far as they assist in defining the right.
The plaintiff’s point is that he was continuously in the service of the ship and subject to orders even while on shore leave since he was at all times subject to the call of duty. Defendant says that the plaintiff’s liability to orders was theoretical while on shore leave and this was the view taken by the District Judge who said that whatever the general obligation of the seaman might be “he is actually beyond the power and authority of the ship’s officers” while on leave.
The nature of the obligation for maintenance and cure has been elaborated at length by judges learned in maritime law.
As an authority against the right of the plaintiff to recover in this case the
The judgment of the District Court is reversed and the case remanded for further proceedings not inconsistent with this opinion.
The Berwindglen, 1 Cir., 1937, 88 F. 2d 125; Barlow v. Pan Atlantic S. S. Corporation, 2 Cir., 1939, 101 F.2d 697; Oliver v. Calmar S. S. Co., D.C.E.D.Pa. 1940, 33 F.Supp. 356.
See the discussion in the Osceola case, supra; Harden v. Gordon, C.C.Me.1823, 11 Fed.Cas. p. 480, No. 6,047; Reed v. Canfield, C.C.Mass.1832, 20 Fed.Cas. p. 426, No. 11,641; The Bouker No. 2, 2 Cir., 1917, 241 F. 831, certiorari denied, 1917, 245 U.S. 647, 38 S.Ct. 9, 62 L.Ed. 529.
The Bouker No. 2, supra, 241 F. at page 833, cited with apparent approval in Calmar S. S. Corp. v. Taylor, 1938, 303 U.S. 525, 529, 58 S.Ct. 651, 82 L.Ed. 993.
Note, however, that the definition quoted is “A person in the active service and submitting to its rules and regulations is, in general, in the line of duty.” One may ask whether a seaman on shore leave, away from his ship, but with definite limitations on his time of absence, is not submitting to rules and regulations. Of. the language of the Court in Southern Steamship Co. v. National Labor Relations Board, 1942, 316 U.S. 31, 62 S.Ct. 886, 86 L.Ed. —.
See The President Coolidge, D.C.N.D. Wash., 1938, 23 F.Supp. 575, where recovery was denied when the seaman was injured while responding to a telephone call from his wife.
Cf. Smith v. American South African Line, Inc., D.C.S.D.N.Y.1941, 37 F.Supp. 262.
Cf. Collins v. Dollar S. S. Lines, Inc., Ltd., D.C.S.D.N.Y.1938, 23 F.Supp. 395.
The Scotland, D.C.S.D.N.Y.1890, 42 F. 925.
Hogan v. S. S. J. M. Danziger, D.C.S.D.N.Y.1937, 1938 Am.Mar.Cas. 685. But see contra, Lilly v. United States Lines Co., D.C.S.D.N.Y.1941, 42 F.Supp. 214.
1924, 295 F. 680.